Why Magazine Capacity Limitations Don’t Work

Magazine size is more likely to matter for people defending against aggressors, which is why it is dangerously presumptuous for the government to declare that no one needs to fire more than X number of rounds. As self-defense experts such as firearms instructor Massad Ayoob point out, there are various scenarios, including riots, home invasions, and public attacks by multiple aggressors, in which a so-called large-capacity magazine can make a crucial difference, especially when you recognize that people firing weapons under pressure do not always hit their targets and that assailants are not always stopped by a single round.

“Why do ordinary law-abiding people need those semiautomatic firearms with magazines that can hold more than ten cartridges?” There are lots of sound answers.

For one thing, defensive firearms are meant to be “equalizers,” force multipliers that can allow one good person to defend against multiple evil people. To allow one good person to defend against a single evil person so much stronger and/or bigger and/or more violent than he or she, that the attacker’s potentially lethal assault can be stopped. History shows that it often takes many gunshots to stop even a single determined aggressor. Most police officers have seen the famous autopsy photo in the cops-only text book “Street Survival” of the armed robber who soaked up 33 police 9mm bullets before he stopped trying to kill the officers. Consider Lance Thomas, the Los Angeles area watch shop owner who was in many shootouts with multiple gang bangers who tried to rob and murder him. He shot several of them, and discovered that it took so many hits to stop them that he placed multiple loaded handguns every few feet along his workbench. That’s not possible in a home, or when lawfully carrying concealed on the street: a semiautomatic pistol with a substantial cartridge capacity makes much more sense for that defensive application.

And, if you will, one more stark and simple thing: Americans have historically modeled their choices of home protection and personal defense handguns on what the cops carried. When the police carried .38 revolvers as a rule, the .38 caliber revolver was the single most popular choice among armed citizens. In the 1980s and into the 1990s, cops switched en masse to semiautomatic pistols. So did the gun-buying public. Today, the most popular handgun among police seems to be the 16-shot, .40 caliber Glock semiautomatic. Not surprisingly, the general public has gone to pistols bracketing that caliber in power (9mm, .40, .45) with similar enthusiasm. The American police establishment has also largely switched from the 12 gauge shotgun which was also the traditional American home defense weapon, to the AR15 patrol rifle with 30-round magazine…and, not surprisingly, the law-abiding citizenry has followed suit there, too.

The reasoning is strikingly clear. The cops are the experts on the current criminal trends. If they have determined that a “high capacity” semiautomatic pistol and a .223 semiautomatic rifle with 30-round magazines are the best firearms for them to use to protect people like me and my family, they are obviously the best things for us to use to protect ourselves and our families.

The first magazine capacity limit was introduced in California as part of the Roberti-Roos Assault Weapon Control Act of 1989. Contemporaneous reports from the time of the drafting of that bill indicate that the 10-round threshold was chosen arbitrarily because that was the lowest capacity of readily available magazines for magazine-fed rifles and “assault pistols” (pistols where magazines are not fed through the pistol’s grip – think Tommy Gun, MAC-10 or Intertec TEC-DC9). At no time during the drafting of Roberti-Roos was it apparent that traditional, semi-automatic pistols were a target of this legislation, principally because revolvers and 1911-style pistols were the most common handguns of the day. NOTE, the Act allowed for the grandfathering of “assault rifles” and magazines owned prior to the implementation of the Act – these rifles and mags became known as “pre-ban” items and command a premium price in California today.

The 10-round threshold was used in the 1994 Federal Assault Weapon (AWB) Ban which borrowed heavily from the California law. The Federal AWB also allowed for the grandfathering of pre-ban rifles and magazines.

There is a long list of academic and government studies which have found that the ban on “assault weapons” and/or the magazine capacity limitations were ineffective at reducing crime and/or gun violence levels. A discussion of those is beyond the scope of this post but you can find out more at these links:

Conclusion of the National Institute of Justice Assessment of the Federal Assault Weapons Ban and Gun Violence 1994-2003:

“We cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

Similar finding can be found in an earlier DoJ study of the Federal AWB Impacts of the 1994 Assault Weapons Ban: 1994–96 (US Justice Department) In the Columbine High School massacre, three of the four firearms used did not use 10+ round magazines. In fact, the two most devastating firearms (i.e. caused the most carnage) were a 30+ year old double-barreled shotgun (reloaded over 20 times=40 shells) and a Hi-Point Carbine, an AWB compliant gun with 10-round magazines (reloaded 10 times = 100 rounds). How well did the Federal AWB, in effect at that time, stop the carnage at Columbine?

More importantly, elected officials and law enforcement professionals are on the record with their own observations of the ineffectual nature of the type of restrictions being argued in Hartford today. A few examples of those:

Obama/Holder Justice Department report saying:

“The 1994 ban on large capacity magazines had limited effectiveness …. A 2004 study of the 1994 law found: “because the ban has not yet reduced the use of [large capacity magazines] in crime, we cannot clearly credit the ban with any of the nation’s recent drop in gun violence.” The 1994 ban essentially did little to affect the supply of large capacity magazines.”

Newark Mayor Corey Booker discussing gun violence:

“To me, the data should drive our decision making. So I know, I’m not afraid of people having guns who are law abiding citizens. In the analysis of gun murders and shootings in my city, I could only find one in the entire time I’ve been mayor – and unfortunately there have been hundreds and hundreds – where a person who was involved in a shooting where they had their gun legally, where they legally acquired their gun. The guns that are causing carnage in our cities, my city and our country, every single year are acquired illegally.”

WSJ interview with former NYPD Commission William Bratton on the realities of gun control laws:

“Mr. Bratton likes what he calls the “symbolism” of this agenda (rifle and magazine bans), but he’s unsure if its enactment would make a substantive difference….. As to what the ultimate outcome will be, it’s anyone’s guess.” And, regarding the practical effect of gun control, he notes that “all the studies that were done about assault weapons after the ban ended after 10 years were pretty much inconclusive.”

How about the opinion of 15,000 police officers across the nation, from Policeone.com’s survey:

“95.7 percent, (more than 14,000 officers) felt that a federal ban on manufacture and sale of magazines that hold more than 10 rounds would DO NOTHING to reduce violent crime. 86 percent feel the currently proposed legislation would have no effect or a negative effect on improving officer safety. Similarly, 92 percent feel that banning semi-automatic firearms, or “assault weapons,” would have no effect or a negative effect on reducing violent crime. 71 percent support law enforcement leaders who have publicly refused to enforce more restrictive gun laws within their jurisdictions. 82 percent believe gun buyback or turn-in programs are ineffective in reducing the level of gun violence. 91 percent support the concealed carry of firearms by civilians who have not been convicted of a felony and/or have not been deemed psychologically incapable Likewise, 80 percent feel that legally-armed citizens would likely have reduced the number of casualties in recent mass shooting incidents.”

MAG LIMITS AND RIFLE BANS DO NOT MAKE A DIFFERENCE TODAY

Magazine capacity limits exist in several states and cities around the country including California, Hawaii, Illinois (Chicago, Aurora), Maryland, Massachusetts, New Jersey, New York and Ohio. There is no universal standard for the threshold between a non-scary “standard capacity” and a very-scary “high capacity” magazine. The number of rounds in the limits range from 10 (CA, NY) to 12 (Chicago IL) to 15 (NJ, Aurora IL) to 20 (Maryland) to 30 (Ohio).

Looking at gun-murder statistics from the Brady Campaign for 2010, there is no correlation between these laws and the gun-murder rates in these states as measured by murder rate in murders per 100,000 people: CA 3.4, NY 2.7, IL 2.8, Chicago IL 9.0, NJ 2.8, MD 5.1, OH 4.0. For comparison, the District of Columbia, with heavy gun restrictions is 16.5, the highest in the USA. LA is next at 7.7 and the lowest is VT with 0.3.

In Connecticut, rate is 2.7 while Bridgeport 15, Hartford 20, New Haven 18 (cities approximated from total murder rates). California’s mag limit has done nothing to prevent California from being the mass gun-murder capital of the USA. For example, the California AWB and mag capacity limits (exactly what is being discusse in Hartford) were unable to prevent:

April 2012 – A massacre at Oikos University where seven students died. A disgruntled student used a compliant pistol had four compliant 10-round mags and ran off after expending a single magazine. Had the killer not panicked, the death toll could have been far higher.

October 2011 – Salong Meritage massacre of eight individuals, all shot with handguns.

May 2011 – Shooting at San Jose State University which killed three in a spousal murder suicide by handgun.

March 2009 – The murder of six in Santa Clara, all by handgun.

December 2008 – The murder of nine in Corvina, all shot with a handgun.

For all of California’s gun laws dating back 25 years, they have done nothing to prevent mass murders nor keep several California cities in the top-20 of all gun-death cities in the USA.

In Illinois, their gun laws were unable to prevent:

February 2008 – The murder of six at Northern Illinois University in DeKalb where were killed with a handgun.

February 2008 – The murder of five at the Brookside Marketplace in Chicago, all those with a single handgun.

August 2003 – The killing of six at a warehouse in Chicago, all killed with a handgun and a “low capacity” magazine.

And then we have the special case of Chicago, the gun-murder capital of the USA with some of the strictest gun laws in the country – why don’t such laws there make a difference?

Closer to CT, New York’s 10-round mag limits were unable to prevent the April 2009 murder of 13 at an immigration center in Binghamton, all deaths due to handguns.

THE MAG SWAP TIMING MEME/MYTH

In the real world, it takes mere seconds to remove a magazine from a semi-auto pistol and insert another, rack the slide and be ready to recommence shooting. A well trained professional can do the entire motion in under one second, a modestly trained person two to three seconds and even a neophyte, five seconds or less. Even under stress, this is not a complicated process. Personally, my best time was just under 2.5 seconds.

One of the consistent arguments heard about the potential efficacy of a mag limit is that it will case a shooter to reload more frequently allowing an opportunity for potential victims to flee or attack the killer or allow law enforcement to attack. This idea is grounded in a single event, the shooting of Gabby Giffords when Jerad Loughner’s Glock jammed when he had to change magazines. Loughner did not use a standard capacity Glock 19 magazine capable of holding 19 rounds, he used an extended magazine that held 32 rounds and conspicuously sticks out of the butt of the pistol. Loughner was tackled not because of the amount of time that he took to swap out the empty mag, but because he pulled it out at an angle and jammed it in the pistol.

There is a meme floating around that the Sandy Hook Killer took ELEVEN seconds to change a magazine and that is being used as justification of this magazine capacity limit law. I have challenged multiple people who have said this to show me the source and none can, they “heard it somewhere”. I think I found the source, a blog post written by an anti-gun person who tried to establish a timeline of the Sandy Hook Massacre. From what I saw, he took the elapsed time from first shot to last (SHK suicide) and then ascribed elapsed time in between. He used an estimate of the firing rate of the Bushmaster to account for all 147 shots fired, added a bit of time in between and then came up with at least one 11 second span that he assigned to a mag swap.

This analysis is fraught with assumptions that make the results suspect at best, disingenuous at worst. For example, no time was allotted for anything other than shooting and mag swaps with a little movement. No time for nose picking, butt scratching or taking a deep breath. What the analysis also does not incorporate is the reports by the Courant and Mike Lupica that the SHK changed more than a few mags before they were empty, tactical reloads, as he learned in countless hours playing shooting video games. Riddle me this those who believe in the 11 second swap time, if the SHK was practiced enough to execute multiple tactical reloads by rote, how could his mag swap times be a clumsy 11 seconds when most people can do 2 to 5 seconds? This argument is garbage and anyone using it to justify these laws should be booed off the venue they are making the lame argument.

UNPRECEDENTED CONFISCATION OF PRIVATE PROPERTY

As far as I have been able to ascertain, there is no precedent for a state-wide ban on magazines without grandfathering that would lead to the forced sale/surrender/destruction of private property that was previously considered lawful.

Beyond the post-Heller interpretation of a citizen’s right to bear arms for self-defense, another Constitutional issue related to forced forfeiture (due to no “grandfather” clause) of private property is the Takings Clause in the Fifth Amendment of the Bill of Rights. Modern interpretation of the Takings Clause is the forced surrender of a citizen’s personal property to the state for no or inadequate compensation (i.e. if there is compensation in a buy-back program, there is technically no taking). There is case law on this but its prospective relevance in the wake of Heller is questionable at best.

Rather than having an extended conversation here, I will point you to an OLR report on the topic written in February – clearly, some elected officials in Hartford are concerned about this issue but I am not sure this report provides any texture either way.

CONFISCATORY MAG LAWS ARE UNENFORCEABLE IN A FREE SOCIETY

The only weight a law limiting magazine capacity has is the threat of being discovered in violation – there is no way for the state to compel sale, surrender or destruction. Since the expiration of the Federal AWB in 2004, tens of millions of weapons that can accommodate magazine 10+ round mags have been sold across the country and with them well over 100 million 10+ round magazines. Based on an April 2011 State of CT Office of Legislative Review (OLR) report, there may be between 3 million and 10 million 10+ magazines in Connecticut, NONE of them logged into a database anywhere.

Further, the OLR report estimates that at the end of 2010, there were over 600,000 firearms in CT capable of accommodating 10+ round mags. Given gun sales since then (using NICS data), my best guess is that number is closer to 700,000 firearms today which could be spread across 300,000 of the state’s 550,000 lawful gun owners.

Thus, from a law enforcement perspective, there is NO WAY to proactively enforce the law other than with the threat of prosecution if one is found in a situation in possession of such mags. Now, gun control people will say that the threat of violation is enough to compel compliance among the law-abiding gun owning population. In fact, I was told this by a senior official of CAGV.

However, this really underestimates how gun owners feel about this and based on what I have heard from gun owners, there will be massive civil disobedience on this measure. Yes, currently law-abiding gun owners will chose to violate this provision even if it means burying 10+ round mags in their backyards, hiding them in the attic in boxes with “old books” or just keep them in the safe or on their hip.

What’s worse than an unenforceable law? Wide-spread civil disobedience that flaunts the law, makes the government look week and will lead to costly prosecutions if local uniformed police can be convinced to enforce a law which many disagree with.

And it is not just Illinois that is facing this potential problem as I wrote here.

But wait, there’s more. Let’s for a moment think that Senator Tony Munoz has a magic Genie who can cross her arms, blink her eyes and convert every 10+ round mag in the state to a 10-round mag. So what if 10+ round mags are still available in other jurisdictions? What is to prevent the criminal, or criminally insane person, from driving north or south from IL to another state which does not restrict mag capacity? NOTHING! State borders are porous, there are well over 200 million 10+ mags in circulation with maybe 100 million of them being for AR or AK style rifles. This law is toothless in this regard and LE will never know there is a violation until they come across a violation, either after a lucky traffic stop or after the next catastrophic massacre.

Had enough? Well, it just gets better, or worse, depending on your perspective. With the exception of some higher end mags for custom pistols, your average magazines is mechanically simple (about as complex as a well-constructed travel mug), small, and completely untraceable. They can be replicated in any well equipped metal-bending shop as they are in the Philippines, Balkans, Africa, the Middle East and elsewhere with high demand due to war, insurgency, etc.

Had enough now? Well, there is the matter of technology making magazine and rifle bans meaningless. Without getting into a long discussion, 3D printing technology is quickly improving and functioning AR-15 magazines can now be printed in plastic. Additionally, various rifle parts have been made and it is estimated that it is only a matter of a year or so before an entire functioning rifle can be printed in someone’s basement or garage. This project is referred to as the Gutenberg Rifle because its development could be as disruptive as was the introduction of Mr. Gutenberg’s printing press.

At the pace at which technology is advancing, how does one enforce a law against that?

REAL-WORLD ENFORCEMENT COSTS

Putting the unenforceable nature of this BAN aside, if you support this legislation and you want to see it proactively enforced, have you considered the IMPLICATIONS of aggressive enforcement?

Would they be willing to ok warrantless searches to find these magazines?

Would they be willing to arrest, try, convict, and imprison for ten years anyone found to possess one?

How much would it cost to imprison all of these millions of people?

Would we have to construct new prisons for them?

What will be the toll on suburban families if the family gun owner is jailed for violating these ineffectual laws?

We live in a state where the Legislature is allowing the early release of criminals because of prison over-crowding and the cost of incarceration – how do we justify passing an ineffectual bill that will make felons of tens of thousands of currently law-abiding citizens?

Would it really be worth it?

While not a complete analysis, the state of CT’s OLR has taken a stab at the cost issue and suggests that the ANNUAL COSTS of implementation, administration and lost economic value to the state will be $50-100million or more in the OLR report on magazines. And if you think their conclusion about gun makers leaving the state is far fetched, Colt Firearms has already announced that they will consider doing so should draconian laws pass in Hartford. Now Senator Munoz wants to bring this misguided, draconian policy to Illinois.

If magazines holding more than 10 rounds are not useful for self-defense and defense of others, shouldn’t the same limit be imposed on police officers and bodyguards (including the Secret Service agents who protect the president)? And if the additional rounds do provide more protection against armed assailants, it hardly makes sense to cite the threat of such attacks as a reason to deny law-abiding citizens that extra measure of safety.